Ram Dayal Vs. Brijraj Singh & Ors
[1969] INSC 133 (30 April 1969)
30/04/1969 SHAH, J.C.
SHAH, J.C.
MITTER, G.K.
CITATION: 1970 AIR 110 1970 SCR (1) 530 1969
SCC (2) 218
CITATOR INFO :
R 1971 SC 267 (33) R 1971 SC1295 (17) R 1972
SC 580 (22) E 1973 SC 178 (9) R 1975 SC 308 (13,14) RF 1975 SC2299
(118,495,498) D 1985 SC1133 (6,21)
ACT:
Representation of the People Act, 1951, ss.
31(1), 77(1) 81(1)--If material amendment of election petition can be allowed
after expiry of period in S. 81(1) within which petition itself must be
filed-Signature and authentication of petition under S. 31(1)-If authentication
can be done subsequent to presentation of petition--Voluntary expenses to help
candidate's election-If liable to be included within limits under S. 77(1).
HEADNOTE:
The first respondent was elected to the
Madhya Pradesh Legislative Assembly in February 1967. The appellant, a voter in
the constituency, challenged his election by an election petition claiming that
the nomination paper of one D was illegally rejected by the Returning Officer
and that the respondent had committed several corrupt practices; it was also
alleged that the Maharaja and Rajmata of Gwalior had helped the first
respondent's election in a number of ways and had in effect acted as his agents
and had incurred considerable expenditure which exceeded the limits prescribed
by the statute. The High Court dismissed the petition and also dismissed an
application made by the petitioner for amendment of the petition to include a
new allegation on the ground that it was made after the expiry of the period
prescribed for filing an election petition.
On appeal to this Court,
HELD : Dismissing the appeal : (i) The High
Court had rightly held that it could not exercise its power to permit amendment
of a petition so as to allow new grounds or char- es to be raised or the
character of the petition to be so altered as to make it in substance a new
petition, if a fresh petition on those allegations would be barred on the date
of the proposed amendment.
Harish Chandra Bajpai v. Triloki Sinqh [1957]
S.C.R. 370;
followed.
(ii) The mark made by the proposer on D's
nomination paper was not authenticated or attested by one of the designated
officers as required under s. 31(1) read with the definition of the expression
"sign" in s. 2(1) of the Representation of the People Act, 1951, and
the provisions of r. 2(2) of the Conduct of Election Rules. 1961. It was
therefore rightly rejected by the Returning.- Officer.
The requirement of s. 33(1) of the Act that the
nomination shall be signed by the candidate and by the proposer is mandatory.
Signing, whenever signature is necessary, must be in strict accordance with the
requirements of the Act and where the signature cannot be made it "must be
authorised in the manner prescribed by the Rules." Attestation is not a
mere technical or unsubstantial requirement within the meaning of s. 36(4) of
the Act -and cannot be, dispensed with. The attestation and the satisfaction
must exist at the stage of presentation and omission of such an essential
feature may not be subsequently validated at the stage of scrutiny any more
than the omission of a candidate to sign at all could have been. [532 F, 533
D-F] 531 Rattan Anmol Singh and Another v. Atma Ram & Others [1955] 1 S.C.R.
481; referred to.
(iii) The High Court had rightly held on the
evidence that none of the corrupt practices alleged was proved.
Unless it is established that expenditure was
incurred in connection with the election by the candidate or by his election
agent or was authorised by him it is not liable to be included under s. 77 of
the Representation of the People Act. Expenses incurred by any other agent or
person without anything more need not be included in the account or return, as
such incurring of expenditure would be purely voluntary.
Assuming in the present case that expenditure
was incurred by the Maharaja and the Rajmata of Gwalior for the purpose of
canvassing votes against the principal candidate opposing the first respondent,
in the absence of any evidence to show that the Maharaja and the Rajmata of
Gwalior acted as election agents of the first respondent or the expenditure was
authorised by him it was not liable to be included in the account of the
election expenses.
[541 D-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1526 of 1968.
Appeal under S. 116-A of the Representation
of the People Act, 1951 from the judgment and order dated May 4, 1968 of the
Madhya Pradesh High Court in Election Petition No. 39 of 1967.
G. L. Sanghi, Sobhag Mal Jain and B. P.
Maheshwari, for the appellant.
H. R. Gokhale, P. L. Dubey, Rameshwar Nath
and Mahinder Narain, for respondent No. 1.
V. C. Parashar, for respondent No. 4.
The Judgment of the Court was delivered by
Shah, J. At the general elections held in February 1967, Brijraj Singh (first
respondent in this appeal) was declared elected to a seat in the Madhya Pradesh
Legislative Assembly from the Sabalgarh Constituency defeating his rival
candidate Raja Pancham Singh by 1706 votes. The appellant Ram Dayal who is a
voter in the constituency moved an election petition in the High Court of
Madhya Pradesh for an order setting aside the election on two grounds :
(1) that the nomination paper of one Dhani
Ram was illegally rejected by the Returning Officer; and (2) that Brijraj Singh
and his agents committed several corrupt practices in relation to the election.
A third ground that Dataram (third respondent
in this appeal) when his nomination was accepted was below the age of 25 and
was on that account incompetent to stand for election, was sought to set up a
new ground made after the expiry of the period prestion. The application was
disallowed by the High Court. The High Court held that an application for
amendment which sought to be set up by an application for amendment of the
election peticribed for filling an election petition cannot be entertained. On
532 a consideration of the evidence the High Court rejected the other grounds,
and dismissed the petition. The appellant has appealed to this Court.
An election petition has, under S. 81 (1) of
the Representation of the People Act, 1951, to be filed within 45 days of the
date of the publication of the result of the election. An application for
setting aside the election, that Dataram was below the age of 25 and on that
account the election was liable to be set aside under S. 100(1)(d)(i) of the
Act made on August 15, 1967, would plainly have been barred, and by amendment
the ground could not be permitted to be added. This Court in Harish Chandra
Bajpai v. Triloki Singh(1) held that the Election Tribunal has power to allow
an amendment in respect of particulars of illegal and corrupt practices, or to
permit new instances to be included. provided the grounds or charges are
specifically stated in the petition, but its power to permit amendment of a
petition under O. VI r. 17 of the Code of Civil Procedure will not be exercised
so as to allow new grounds or charge,;
to be raised or the character of the petition
to be so altered as to make it in substance a new petition, if a fresh petition
on those allegations would on the date of the proposed amendment be barred. By
the amendment a new ground for setting aside the election was sought to be
introduced, and the High Court was right in rejecting the application for amendment.
The plea that the rejection of the nomination
paper of Dhani Ram by the Returning officer was illegal has no substance.
On January 19, 1967 Dhani Ram delivered to
the Returning Officer two nomination papers signed by him. Each nomination
paper bore a thumb impression of one Gokla as the proposer. But the thumb
impressions were not authenticated or attested in the presence of the Returning
officer or any other officer specified in the Rules. The Returning Officer
rejected the nomination papers.
Sec. 33(1) of the Representation of the
People Act, 1951, requires that each candidate shall deliver to the returning
officer a nomination paper completed in the prescribed form and signed by the
candidate and by an elector of the constituency as proposer. The expression
"sign" is defined in s. 2 (1) of the Act as amended by Act 27 of 1956
as meaning "in relation to a person who is unable to write his name
authenticate in such manner as may be prescribed".
Rule 2(2) of the Conduct of Election Rules,
1961 provides :
"For the purposes of the Act or these
rules, a person who is unable to write his name shall, unless otherwise
expressly provided in these rules, be deemed to have signed an instrument or
other paper if- (1) [1957] S.C.R. 370.
533 (a) he has placed a mark on such
instrument or other paper in the presence of the Returning officer or the
Presiding officer or such other officer as may be specified in this behalf by
the Election Commission.
(b) such officer on being satisfied as to his
identity has attested the mark as being the mark of that person.
Where a person is unable to write his name,
he may place his mark on the instrument or other paper and the requirements of
law are complied with, provided he puts the mark in the presence of the
Returning officer or the Presiding officer or such other officer as may be
specified in that behalf by the Election Commission and such officer on being
satisfied as to his identity attests the mark as being the mark of that person.
Gokla was illiterate. He impressed his thumb mark on the nomination paper : but
it was not placed in the presence of any of the designated officers, nor was
there any authentication or attestation of the thumb-mark The requirement under
s. 33 (1) of the Act that the nomination -shall be signed by the candidate and
by the proposer is mandatory. Signing, whenever signature is necessary, must be
in strict accordance with the requirements of the Act and where the signature
cannot be written it must be authorised in the manner prescribed by the Rules.
Attestation is not a mere technical or un Substantial, requirement within the
meaning of s. 36(4) of the Act and cannot be dispensed with.
The attestation and the satisfaction must
exist at the stage of presentation and omission of such an essential feature
may not be subsequently validated at the stage of scrutiny any more than the
omission of a candidate to sign at all could have been : Rattan Anmol Singh and
Another v. Atma Ram & Others.(1). The nomination papers of Dhani Ram were
filed on the last day fixed for receiving the nomination papers.
Not being attested as required by law on the
date of filing, the defect could not be rectified at the time of scrutiny.
Evidence of witnesses for the appellant who
deposed that that at the date of scrutiny. Gokla was present outside the office
of the Returning Officer and that Dhani Ram brought to the notice of the
Returning Officer that Gokla was present and that his signature may be
attested, and that the Returning officer declined to accede to the request need
not be considered. The Returning officer could not allow Dhani Ram or his
proposer to rectify the defect in the nomination papers after the last date of
nomination.
Several corrupt practices were set up in the
petition. The corrupt practices relied upon by the appellant in this appeal may
be broadly classified under three heads (1) [1955] 1 S.C.R. 481.
534 (1) that on January 19, 1967, Brijraj
Singh paid Rs. 250 to Sone Ram respondent No. 5 at Morena and successfully
persuaded him not to file his nomination paper.
(2) that Brijraj Singh and his agents toured
the constituency in a jeep fitted with a microphone and visited many villages
and delivered speeches reflecting upon the character and conduct of Raja
Pancham Singh a candidate sponsored by the Congress Party.
One Chhotey Lal respondent No. 4 was made to
contest the election by Brijraj Singh to "divide the votes of Raja Pancham
Singh" and that Chhotey Lal who supported the candidature of Brijraj Singh
made statements between January 20, 1967 and February 19, 1967 and distributed
leaflets containing statements of fact relating to the personal character and
conduct of Raja Pancham Singh which were false to the knowledge of Chhotey Lal
or who did not believe them to be true, and that the leaflets were issued and
circulated with the consent of Brijraj Singh, and (3) that the Maharaja Scindia
of Gwalior accompanied by Brijraj Singh visited several villages in a
helicopter and addressed election meetings in support of the candidature of
Brijraj Singh and the Maharaja acted as his agent and incurred expenditure for
carrying on election propaganda : if the expenditure incurred for the purpose
of obtaining the use of the helicopter and a fleet of motor cars used by him
were taken into account, such expenses being incurred or authorised by Brijraj
Singh would considerably exceed the limit prescribed by the statute.
In the view of the High Court Chhotey Lal did
commit a cor- rupt practice in that he distributed on January 29, 1967 at
Kelaras village leaflets containing statements of fact relating to the personal
conduct of Raja Pancham Singh, but it was not proved that Chhotey Lal
contested, the election at the instance of Brijraj Singh "to divide the
votes of Raja Pancham Singh" or that he was the agent at any time of
Brijraj Singh nor was it proved that Chhotey Lal had ever supported the
candidature of Brijraj Singh or that any pamphlet of the nature circulated by
Chhotey Lal was issued or circulated by Brijraj Singh. In that view the High
Court held that the election of Brijraj Singh was not materially affected by
the candidature of Chhotey Lal. 'Me High Court rejected the contention of the
appellant that Brijraj Singh committed other corrupt practices alleged. The
High Court accord- 535 ingly passed an order declaring that the appellant had
failed to establish that Brijraj Singh had committed any corrupt practice with
which he was charged. The High Court dismissed the election petition filed by
the appellant with costs, but declared that the 4th respondent Chhotey Lal was
guilty of the corrupt practice within the meaning of s. 123 (4) of the Act and
was on that account disqualified for a period of six years from the date of the
order under s. 8A of the Act. Against that order this appeal has been preferred
by the appellant.
Chhotey Lal has not appealed against the
order recorded against him. He is impleaded as a party-respondent and he has
appeared before this Court through counsel. At the hearing counsel appearing
for Chhotey Lal urged that the finding of the High Court that Chhotey Lal was
guilty of the corrupt practice charged against him is contrary to evidence. But
in the absence of an appeal filed by Chhotey Lal the ground cannot be permitted
to be agitated by him.
The appeal was filed by the appellant
challenging the order of the High Court refusing to set aside the election of
Brijarj Singh on the three grounds set out hereinbefore. the scope of the
appeal cannot be expanded by permitting chhotey lal who could have but has not
chosen to appeal, to plead that he has not committed any acts amounting to a
corrupt practice.
The case that Brijraj Singh gave Rs. 250 to
Sone Ram and induced him to withdraw his candidature is unreliable. One Shanker
Lal deposed that on January 19, 1967, he met Brijraj Singh and Sone Ram in the
compound of the office of the Collector, Morena, and the former induced Sone
Ram not to contest the election and offered to pay a bribe of Rs. 250, and paid
Rs. 250 to Sone Ram. According to the witness there were several persons present
at the time when the bribe was offered and paid, but none of those persons was
called as a witness on behalf of the appelant. One Tikaram who was alleged to
be present was examined on behalf of Brijraj Singh and he denied that any such
offer was made or bribe paid. Sone Ram also denied that he had received any
bribe from Brijraj Singh. He stated that he had borrowed Rs. 200 from his
maternal uncle to deposit the amount for his candidature but since his maternal
uncle declined to incur any further expenditure and dissuaded him from
contesting the election he had to abandon his candidature.
In the opinion of the Trial Judge the witness
Shanker Lal was an untruthful witness and we see no reason to disagree with
that view.
We may now turn to the plea that Brijraj
Singh made false allegations against the personal conduct and 'character of
Raja Pancham Singh orally and by circulating pamphlets, on which a great deal
of argument was advanced before us. It was the case Sup, C.1.169-5 536 of the
appellant that Brijraj Singh and his two workers Laxmi chand and Shankarlal
visited several villages between February 2, 1967 and February 26, 1967, in
connection with the election campaign and made false statements against the
character and conduct of Pancham Singh in the meetings held in those villages,
and "in door to door canvassing in" those villages. Those allegations
are denied by Brijraj Singh and by Laxmichand and Shankar lal. The case of the
appellant was that these allegations were made in the course of the election
propaganda in ten villages. but evidence was led in respect of statements made
in six villages. It is said that Brijraj Singh and his supporters visited the
village Narhela and held a meeting in that village. One Dhaniram stated that a
meeting was held at the village Narhela, but the witness did not say that
either Brijraj Singh or his workers made any allegations against the personal
character of Pancham Singh. According to this witness Brijraj Singh merely
requested the persons assembled therein the. meeting to vote for him. Witness
Ghansu stated that a meeting was held at the village Narhela and the same was
addressed by Brijraj Singh and Laxmichand and that these two persons stated
that Pancham Singh was " associating with dacoits" and had
misappropriated money belonging to a school and had got the school closed and
that whenever any member of the legislative assembly sought to visit him be set
his dogs at him. In the election petition there was no reference to any meeting
held at Narhela or of any offending statements made at any such meeting. It was
stated in paragraph III(a) of the election petition, in setting out the details
of the corrupt practices, that the first respondent accompanied by Laxmichand
and Shankerlal toured in a jeep fitted with a microphone and visited the
village Narhela on February 2, 1967 and canvassed votes going from door to
door. The witness Ghansu did not belong to Narhela, and no witness from village
Narhela was examined. Laxmichand, Shankerlal and Brijlal Singh denied that any
statement against the personal conduct and character of Pancham Singh was made
by them at Narhela either in any meeting or in "door to door
canvassing". Phoolsingh-the only witness examined on behalf of the
appellant-did not support his case that Singh at Budhreta. About the village
Khirla, witness Kesharsingh stated that Brijraj Singh and Laxmichand had held
meetings and had -made statements against the personal conduct and character of
Pancham Singh. But the witness did not belong to the village Khirla : he is a
resident of Pahadgarh village which is at a distance of fifteen miles from
Khirla.
No witness from Khirla was examined. Witness
Dataram said that at a meeting held at Sujarma, Brijraj Singh had made any
statements derogatory of Pancham Pancham Singh." But the testimony of the
witness who is said to be constantly under "police surveillance" is
unreliable. About the meeting held at Village Kelaras the appellant examined
three 537 witnesses-Narayan, Kanhaiyalal and Sardarsingh. The first two. witnesses
said nothing about any statement made about the personal character of Raja
Pancham Singh at the meeting.
Sardarsingh supported the case, of the
appellant, but the testimony of the witness was inconsistent with the case of
the appellant. About the meeting held at village Kulouli the appellant examined
witness Badri who stated that both Brijraj Singh and Laxmichand had made
statements derogatory of Pancham Singh. His explanation about his presence at
the village Kulouli was apparently untrue and his testimony was otherwise
unreliable.
The learned Judge summarised the evidence of
the witnesses.
on behalf of the appellant and concluded that
the appellant had, "miserably failed" to establish that Brijraj Singh
and his agents Laxmichand and Shankar Lai had made any statements derogatory to
the personal character of Pancham Singh. In the view of the learned Judge it
was not proved that Brijraj Singh and his two agents had made statements that
Pancham Singh was an associate of dacoits, nor was the statement that Pancham
Singh had misappropriated the funds of the school proved. The learned Judge,
also held that the statement alleged to have been made by Brijraj Singh and his
agents that Pancham Singh was responsible for getting the school at Pahadgarh
closed and that "he lets loose ferocious dogs towards the persons who go
to see him" were trivial and did not involve any moral turpitude, and even
assuming that those statements were made, no corrupt practice could we said to
have been committed on that account under s. 123 (4) of the Act.
The learned Trial Judge found that Chhotey
Lal committed a corrupt practice by distributing pamphlets casting reflections
upon the personal character of Pancham Singh.
But in the view of the learned Trial Judge
there was no reliable evidence to prove that Chhotey Lal acted on behalf of
Brijraj Singh. or that the latter defrayed the expenses of the pamphlet or that
the agents of Brijraj Singh distributed the offending pamphlets. The learned
Judge has carefully considered the evidence and no serious argument has been
advanced before us on that part of the case which may justify as in taking a
different view. Not a word was said that the expenses incurred by Chhotey Lal
for getting the pamphlets printed were reimbursed, nor was the evidence of the
witnesses Sanwaldas Gupta, Kalyansingh Tyagi examined on behalf of the
appellant hat Brijraj Singh and his agents circulated the Pamphlets true. The
learned Judge observed that the story that out of the 2,500 copies of the
pamphlets printed, 2,000 copies of the pamphlet had been handed over by Chhotey
Lal to Brijraj Singh on the night on January 19, 1967, was "a clumsy and
crude invention of these we witnesses", and "was utterly false and
unreliable". After con- 538 sidering the various improbabilities and the
discrepancies relating to the testimony of the witnesses Sanwaldas Gupta and
Kalyansingh Tyagi, the learned Judge observed that these witnesses
"invented lies" and did "their best to introduce clumsy and
crude improvements at the stage of evidence" with the "object of
bolstering up" the appellant's case and through him that of Raja Pancham
Singh. In his view the story that the pamphlet Annexure 'A' was issued or
circulated with the consent of Brijraj Singh was false. The learned Judge also
found on a consideration of the evidence that at no stage did Chhotey Lal
support the candidature of Brijraj Singh and that it was not proved that the
pamphlet Annexure 'A' was ever issued or circulated with the consent ,of
Brijraj Singh. In his view Brijraj Singh had no connection -with the printing
and publication of the pamphlet and on that account the plea of corrupt
practice set out and founded on the ,circulation of the pamphlet was not
proved. We see no reason to disagree with the view expressed by the learned
Judge.
It was then urged that the Maharaja Scindia
of Gwalior in- curred considerable expenditure as agent of Brijraj Singh in
canvassing votes and the expenditure so incurred was liable to be included in
the election expenses of Brijraj Singh.
It was claimed -that the, Maharaja and the
Rajmata of Gwalior as agents of Brijraj Singh took a leading part in canvassing
votes in different villages .and in doing so used a helicopter and a fleet of
motor cars and spent large sums of money which were not disclosed in the
account ,of election expenses filed by the &St respondent Brijraj Singh.
Brijraj Singh had contested the election as
an independent candidate. But the appellant says that the, Maharaja and the
Rajmata of Gwalior addressed election meetings and in those meetings they
declared that Brijraj Singh was sponsored as a candidate by them, and that the
voters should support Brijraj Singh. Brijraj Singh in his evidence stated that
the Maharaja had the "Central Election office of Maharaja Gwalior'
representing the alliance of various political parties and individuals opposed
to the Congress candidate and in propagating its views and policy during the
election this Organisation also supported the candidates who ,opposed Pancham
Singh.
There was no reliable evidence that the
candidature of Brijraj Singh was sponsored by the Maharaja and the Rajmata of
Gwalior. The opinion expressed by the witness Dataram cannot do duty for
evidence in support of the case of the appellant. Sanwaldas Gupta and Kalyansingh
Tyagi stated that they had requested the Maharaja to adopt Chhotey Lal as his
candidate for election but they were told by the Maharaja that he had already
decided to set up Brijral Singh as his candidate -and that they also should
actively -support him. The evidence of these witnesses was found to be 539
unreliable by the High Court. In our judgment the High Court has rightly
rejected their testimony. It was said that in certain villages speeches were
made by Brijraj Singh that he was set up as a candidate by the Rajmata of
Gwalior.
But there is no reliable evidence in support
of that case.
Reliance was strongly placed upon visits made
by the Rajmata of Gwalior at villages Kelaras and Sabalgarh on Feb. 4 or Feb.
5, 1967, with a fleet of motor cars and about the speeches delivered in those
villages declaring that Brijraj Singh was set up by her and that the voters
should vote for him -and strengthen her hands. It is also said that the
Maharaja visited Kelaras, Pahadgarh, Sujarma, Budhreta, Kulhouli, Sabalgarh,
Jhunpura and Narhela on Feb. 11 or 12, 1967 in a helicopter and addressed
meetings in those villages and in Ms speeches declared that Brijraj Singh was
sponsored as a candidate by him and his mother -and the voters should vote for
him.
A large number of witnesses Keshrisingh,
Narayan Sardar- singh, Dhaniram, Phoolsingh, Kanhaiyalal, Mata Prasad, Dwarka
Prasad, Sanwaldas Gupta, Kalyansingh Tyagi, besides the appellant, were
examined in support of that case.
Brijraj Singh admitted that on Feb. 4 or 5,
1967, the Rajmata had visited the villages Kelaras and Sabalgarh and had
addressed meetings in those villages. But he denied that she declared in those
meetings that he was set up as a candidate by her. He further stated that the
Maharaja had visited on Feb., 11 or 12, 1967, five villages, Kelaras,
Pahadgarh, Budhreta, Jhundpura and Sabalgarh in a helicopter and addressed
meetings in those villages. But in none of those meetings did he declare that
Brijraj Singh was a candidate set up by the Maharaja. The witnesses examined on
behalf of the appellant were, in view of their general tenor, found unreliable.
The learned Judge therefore stated his conclusion that on Feb. 4 or 5, 1967 the
Rajmata of Gwalior visited two villages, Kelaras and Sabalgarh and addressed
meetings there; and her -son the Maharaja visited five villages, namely,
Kelaras, Pahadgarh, Budhreta, Thundpura and Sabalgarh in a helicopter on or
about Feb. II or 12, 1967 and addressed meetings there, but there was no
reliable evidence to prove that Brijrai Singh was sponsored as a candidate by
the Rajmata or the Maharaja of Gwalior.
In the view of the learned Judge the
testimony of the witnesses on behalf of the appellant was "so thoroughly
unreliable" that no reliance could be placed upon it. He concluded, after
considering the evidence of Budharam, that Brijraj Singh was an independent
candidate and contested the election as an independent candidate, and even
though meetings were addressed by the Maharaja and his mother-the Rajmata-they
did not say that Brijraj Singh was set up as their candidate." We have
carefully gone through the evidence of the witness and heard the arguments ad
at the 540 Bar and see no reason to disagree with the view taken by the learned
Judge.
The evidence of the witnesses that Brijraj
Singh travelled with the Maharaja of Gwalior in his helicopter and visited
several villages for his election campaign was also unreliable and was, in our
judgment, rightly disbelieved.
The evidence shows that when the Maharaja
visited the village Kelaras the only occupants in the helicopter were the
Maharaja and the pilot and that Brijraj Singh was not in the helicopter when
the Maharaja visited Kelaras. Similarly about the village Jhundpura there is
evidence that Brijraj Singh was not with the Maharaja in the helicopter. About
the village Budhreta the witness Phoolsingh deposed that Brijraj Singh was in
the helicopter travelling with the Maharaja. But from the cross-examination of
the witness it appears that his testimony was "worthless." The
testimony of Phoolsingh was inconsistent with the testimony of
Ramcharanlal-Sarpanch of the village. Similarly about the visit to Sabalgarh
village two of the witnesses examined were Budhram and Sanwaldas Gupta. Budhram
said nothing about Brijraj Singh accompanying the Maharaja in the helicopter.
Sanwaldas Gupta supported the case of the appellant, but having regard to his
interest in the appellant and the general unreliability of his testimony, he
could not be believed. About the village Pahadgarh, according to Mata Prasad
examined on behalf of the appellant, Brijraj Singh was in the helicopter and
the witness claimed that he had taken photographs of Brijraj Singh while he was
in the helicopter. We have seen the original photographs Exts. P-11A, P-11B,
P-12A, P-12B, P- 13A and P-14A which are in respect of the journeys by the
helicopter, the helicopter getting ready for takeoff, of the meetings addressed
by the Maharaja and of the occupants in the helicopter. Some of the photographs
are so hazy and indistinct that it is impossible to identify any one in the
group. For instance the photograph Ext. P-13A in which it is claimed that
Brijraj Singh was in the helicopter shows merely a smudge and it is impossible
to say that any one was sitting in the helicopter. In the view of the learned
Judge the witness Mata Prasad and Dwarka Prasad had been tutored to give false
testimony that Brijraj Singh had accompanied the Maharaja at the time when the
helicopter landed and also when it took off and on the consideration of the
evidence it was established that Brijraj Singh was not with the Maharaja of
Gwalior either at the time when the helicopter landed at the five
villages--Kelaras, Jhundpura, Budhreta, Sabalgarh and Pahadgarh or when the
helicopter took off. The learned Trial Judge disbelieved the witness Mata
Prasad. We have scrutinized the evidence of Mata Prasad and have seen the
original photographs and have no doubt that the learned Judge was right in
holding that the testimony of the witness Mata prasad was unreliable.
541 In the absence of any connection between
the canvassing activities carried on by the Maharaja and the Rajmata with the
candidature of Brijraj Singh, it is impossible to hold that any expenditure was
incurred for Brijraj Singh which was liable to be included in the election
expenses of the first respondent. Under s. 123(6) of the Representation of the
People Act, 1951, the incurring or authorizing of expenditure in contravention
of S. 77 is -a corrupt practice and s. 77 provides, insofar as it is material
"(1) Every candidate at an election shall, either by himself or by his
election agent, keep a separate and correct account of all expenditure in
connection with the election incurred or authorised by him or by his election
agent between the date of publication of the notification calling the election
and the date of declaration of the result thereof, both dates inclusive.
(2) (3) The total of the said expenditure
shall not exceed such amount as may be prescribed." Unless it is
established that the expenditure was incurred in connection with the election
by the candidate or by his, election agent or was authorised by him it is not
liable to be included under s. 77 of the Representation of the People Act. We
agree with the High Court that under s. 77(1) only the expenditure incurred or
authorised by the candidate himself or by his election agent is required to be
included in the account or return of election expenses and thus expenses
incurred by any other agent or person without any- thing more need not be
included in the account or return, as such incur-ring of expenditure would be
purely voluntary.
Assuming that expenditure was incurred by the
Maharaja and the Rajmata for the purpose of canvassing votes against Raja
Pancham Singh, in the absence of any evidence to show that the Maharaja and the
Rajmata of Gwalior acted as election agents of Brijraj Singh or the expenditure
was authorised by Brijraj Singh it was not liable to be included in the account
of the election expenses.
We agree with the High Court that there is no
evidence on the record to prove that Brijraj Singh actually spent any money on
the helicopter used by the Maharaja in visiting the five villages and the two
cars used by the Rajmata in visiting the two villages. There is no evidence on
the record direct or circumstantial to prove that Brijraj Singh had authorised
the Maharaja and his mother to incur the expenditure on the helicopter and the
two cars. It is not necessary then to consider whether the expenditure incurred
by the Maharaja and the Rajmata of Gwalior in respect of the helicopter and the
motor cars can be said to be expenditure incurred by a political party for
carrying on propaganda to 542 promote their views and their party interest and
their policies and to educate the electoral constituency, and on that account
is non liable to be included in the election expenses of the candidate.
Having carefully considered the evidence and
having heard the arguments advanced at the Bar at considerable length, we are
,of the view that the appellant has failed to establish that Brijraj Singh was
set up as a candidate by the Maharaja or the Rajmata of Gwalior as their
nominee or that the Maharaja and the Rajmata had incurred any expenditure as an
agent of Brijraj Singh or the expenditure incurred by the Maharaja and the
Rajmata of Gwalior was authorized by Brijraj Singh and was liable to be
included in his account of election expenses under s. 77 of the Representation
of the People Act, 1951.
The appeal fails and is dismissed with costs
in favour of the first respondent. The order of costs in favour of the 4th
respondent passed by the High Court is set aside.
R.K.P.S. Appeal dismissed.
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